Federal Firearms Offenses
Federal firearms convictions carry years in federal prison.
Federal laws and sentencing guidelines call for lengthy prison terms, especially for people with prior criminal convictions. Federal prosecutors can take what might seem like a simple firearms possession or drug distribution case and tack on multiple charges resulting in severe back-to-back sentences. There is no parole in the federal system, so people serve the majority of their sentences minus a percentage of time for good conduct credit and reductions through certain programs. With so much at stake, a federal firearms case requires an experienced federal defense attorney.
Most firearms charges can be prosecuted in either federal or state court.
Cases that end up in federal court usually result in higher sentences than they would in state court because of federal mandatory minimum and maximum sentencing laws, as well as the U.S. Sentencing Guidelines. The reasons behind why a case ended up in federal court might not be obvious. Any number of factors can determine if a case will be prosecuted in federal rather than state court, including if the case involves:
An investigation or arrest by a federal agency (including the Federal Bureau of Investigation (FBI); Drug Enforcement Agency (DEA); the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); Homeland Security Investigations (HSI), and U.S. Customs and Border Protection (CBP))
An investigation or arrest by a task force that involves multiple local, state, and/or federal agencies
An international investigation
A federal informant or cooperator
Multiple defendants, co-conspirators, or organized crime
A Federal Firearms Licensee (FFL)
Federal property (like military bases, federal prisons, and national parks)
Multiple types of crime (like drug dealing in addition to firearms offenses)
Activity in more than one state or county
Certain firearms or devices regulated by federal law (like machineguns, sawed-off shotguns, silencers, and firearms without serial numbers)
A person with prior felony convictions – especially for drugs or violent crimes – which triggers higher federal mandatory minimum sentences
Threats or harm to a person of federal interest (like a federal agent, government official, or government cooperator)
Aggravating circumstances (like the use of violence)
Using the mail or internet to facilitate crime
Previous convictions for drug or violent crime offenses
Federal Firearms Charges
Federal firearms crimes fall into five main categories:
People prohibited from possessing firearms
Types of firearms prohibited by federal law
Firearms connected to crimes of violence or drug crimes
Dishonesty during the purchase of a firearm
Federal Firearms Licensee (FFL) offenses by licensed dealers
People Prohibited from Possessing Firearms or Ammunition
Federal law makes it a crime for certain types of people to possess firearms or ammunition. “Possession” includes holding the firearm for someone else, even temporarily. The person does not have to be the owner of the gun — simply holding, carrying, storing, or borrowing it can be enough. Federal law prohibits a person from possessing a firearm who:
Has a prior felony conviction
Is a fugitive from justice
Is a user or addict of controlled substances
Is illegally in the U.S.
Was dishonorably discharged from the military
Is under a domestic violence restraining order
Is presently under federal indictment
Has ever been committed involuntarily to a mental institution
The sentence for any of these offenses is up to 10 years in prison. Federal law also prohibits people from selling or transferring a firearm or ammunition to someone they knew or had reason to believe falls into one of these categories, and the penalties are the same.
The firearms offense that federal prosecutors most commonly charge is being a felon in possession. (18 U.S.C. § 922(g)) A “felon” is defined as a person who has a previous conviction anywhere in the country for a crime in which the sentence could have been one year or more in prison. It does not matter if the judge actually imposed a sentence of less than one year. If the prior sentence could have been a year or more, then it means the person can no longer possess a gun under federal law. The prior conviction can be for any crime and is not limited just to other firearms crimes, drug offenses, or any other particular crime.
For example, if someone has a prior drug conviction where the penalty could have been up to 2 years in prison, but the judge ordered a sentence of only 8 months, then that still counts as a prior felony conviction because the possible sentence was more than a year in prison. That person is prohibited from carrying a firearm under federal law. It also does not matter if the state where the prior conviction occurred considers the previous conviction a misdemeanor. If the possible sentence could have been one year or more, then it counts as a “felony” for purposes of being a felon in possession of a firearm.
The fact that state law might allow the person to possess a firearm does not matter, and the federal government can still charge the person with a federal crime. The only exceptions are if the state has restored the person’s rights to possess firearms after a felony conviction or the prior felony conviction was expunged. An experienced federal defense attorney will examine whether one of these exceptions applies and present evidence that could result in the dismissal of charges.
Armed Career Criminal Act
If a person is convicted of being a felon or other prohibited person in possession of a firearm, then certain previous convictions for drug offenses or violent crimes can enhance the mandatory minimum sentence under the Armed Career Criminal Act (18 U.S.C. § 924(e)). Normally, the mandatory minimum and maximum sentences are 0-10 years for being a felon or other prohibited person in possession of a firearm. But under the Armed Career Criminal Act, if the person has three prior convictions for a “violent felony” or a “serious drug offense,” then the mandatory minimum and maximum sentence jump up to 15 years to life in prison. Here is a good summary of how and when the Armed Career Criminal Act applies in different situations.
Firearms Prohibited by Federal Law
Federal law prohibits anyone from possessing certain types of firearms, ammunition, and other devices (like explosives and silencers). For example, it is a crime to knowingly receive, store, transport, possess, or sell any firearm or ammunition that has been stolen or any firearm with an obliterated or missing serial number. (18 U.S.C. 922(i)-(l)) This applies to all types of guns and ammunition, including handguns. The maximum potential sentence for these types of offenses is either 5 or 10 years in prison, depending on the specific violation.
The National Firearms Act (NFA) also allows the federal government to regulate certain firearms and devices it deems especially dangerous. (26 U.S.C. § 5845(a)) That includes, for example:
Machine guns
Silencers
Sawed-off shotguns with a barrel less than 18 inches long
Sawed-off rifles with a barrel less than 16 inches long
Other weapons that are less than a certain length and are made from shotguns or rifles
Other destructive devices
Federal law requires that these firearms and devices are properly registered, taxed, and manufactured or sold under federal laws. It is a crime to receive or possess one of these firearms or devices that has not been federally registered to the person, to obliterate or remove the serial numbers, or commit a variety of other similar offenses under 26 U.S.C. § 5861. The penalty for any violations under the National Firearms Act is up to 10 years in prison.
Firearms Connected to Crimes of Violence or Drug Crimes
The federal penalties are severe if a person had a gun during another crime. For example, if a person used or carried a firearm during and in relation to a crime of violence or drug trafficking crime, then the mandatory minimum sentence is 5 years. (18 U.S.C. § 924(c)) If the person “brandished” the firearm during the crime of violence or drug trafficking, then the mandatory minimum increases to 7 years. If shots were fired, then the mandatory minimum increases to 10 years in prison. A prior conviction under this statute triggers a mandatory minimum 25-year sentence.
The same penalties apply if the person possessed a firearm in furtherance of a crime of violence or drug trafficking crime. The difference between “possessing in furtherance of” and “using or carrying during and in relation to” a crime is subtle but important.
Possessing a firearm in furtherance of a drug trafficking crime or crime of violence: If the person is charged with “possessing a firearm in furtherance of a drug trafficking crime or crime of violence” under 18 U.S.C. § 924(c), then the government must prove that the person possessed the firearm “in furtherance” of the crime. It is not enough to show that the person owned or possessed a gun at the time of the offense. The possession of the weapon must have been “in furtherance” of the crime, meaning that it advanced or assisted the crime in some way.
Using or carrying a firearm during and in relation to a drug trafficking crime or crime of violence: Using or carrying a gun during the crime is more severe than simply possessing a gun (like back in the car or at home), and so for this prong of 924(c), the government does not have to prove that the using or carrying of the firearm advanced the offense. Rather, the government need only prove that the person used or carried the firearm at some point during the criminal conduct (“during”) and that the person had the firearm for some reason related to the crime (“in relation to”).
In many cases, the government cannot prove that the person possessed a firearm “in furtherance of” the offense or that the person used or carried the firearm “during and in relation to” the offense. For example, a firearm left inside a vehicle during a drug purchase might not count. A firearm left inside a house with drugs, baggies, a digital scale, and a safe of cash is debatable, depending on where the firearm was specifically and other facts of the case. Threatening to use a firearm for some reason not directly related to the offense also might not count. An experienced federal defense attorney can exploit flaws in the government’s case by showing that the government cannot prove the firearm was used “in furtherance of” or “during and in relation to” the crime.
A qualified federal defense lawyer can also attack whether the offense qualifies as a “crime of violence” or a “drug trafficking crime,” in which case the 924(c) charge might not even apply. If the case goes to trial, an experienced federal defense lawyer can expose weaknesses in the prosecution, including the unreliability of witnesses and government cooperators, weak and circumstantial evidence surrounding ownership and possession of the gun, and illegal or improper searches and traffic stops. An acquittal or dismissal on a 924(c) charge can have a major effect on a person’s life.
Dishonesty During a Firearms Purchase
Federal law also prohibits people from lying during the purchase of firearms and ammunition from licensed dealers, including false statements on the purchase or background form. (18 U.S.C. §§ 922(a)(6) and 924(a)(1)(A)) It is also a crime to ask someone else to make a false statement on a form or to pretend to be the real buyer, which constitutes a “straw purchase.” The false statement must be one that was either intended or likely to deceive the firearms dealer into making the sale. Whether the dealer was actually deceived is irrelevant. It can be difficult for the government to prove that the statement was knowingly false, that it was material, or that the person was in fact a “straw purchaser.” An experienced defense attorney will explore all of these possibilities to obtain the best possible result.
Federal Firearms Licensee (FFL) Offenses
Record-keeping violations for Federal Firearms Licensees (FFLs) can involve either the failure to make proper records or making false statements on the Form 4473 or other records that the FFL is required to keep. (18 U.S.C. §§ 922 and 924) These offenses are usually, but not always, misdemeanors. If the government proves that the record-keeping errors or omissions were willful or deliberate, then the crime could be a felony. Either a misdemeanor or felony charge could seriously jeopardize the person’s livelihood as a federally licensed firearms dealer. Any investigations in FFLs require expert advice from a federal firearms attorney.
Pretrial Detention and Bond
In a federal firearms case, the court can order a defendant to be locked up pending trial, rather than being released on bond. In deciding whether someone facing federal charges should be released or detained in jail, the judge will consider whether the defendant presents a danger to the community or a risk of non-appearance at future court hearings. To make the decision, the judge will hold a hearing to learn more about the person’s criminal history and personal character, the severity of the offenses charged, the potential that the defendant will attempt to threaten or intimidate witnesses, and other factors. If the judge does not order detention, the judge will set a bond that may require the defendant to be monitored by a supervising court officer, submit to drug testing, live in a certain place or with certain people, not travel outside the district, maintain employment, and other restrictions. The judge may also require the bond to be “secured” by cash or property, which the court can seize if the defendant violates conditions of the bond or fails to appear in court.
Federal Trial Preparation and Evidence
By the time the government charges a defendant, prosecutors and investigators have usually been working on the case for a long time. A defendant does not have as much time to develop a strategy and come up with a defense, especially in a complex conspiracy charge.
The federal “Speedy Trial Act” requires trials to take place within specified time limitations unless certain exceptions apply. While the law, by its name, was meant to protect the rights of defendants to a timely trial, one of its unintended effects is that it shortens the amount of time for the defendant to develop a strong strategy. Because evidence in federal cases is often voluminous and has been available to the prosecuting attorney much longer than the defendant, this has the potential to put defendants and their attorneys on their heels.
The defense can gain access to the government’s evidence in a number of ways. In the pretrial “discovery” process, the government is required to disclose a limited amount of information about the evidence it intends to use at trial. An independent investigation by the defense attorney can be a critical step to finding out more about the government’s case. An experienced criminal defense attorney will use any lawful means at his or her disposal, including public records review, interviews, and research, to challenge the government’s evidence and its theory of the case. The Freedom of Information Act (FOIA) and other federal laws also allow the defense to obtain public records from government agencies under certain circumstances. While there are exceptions to FOIA that can delay or prevent production, the statute provides opportunities to learn facts the prosecuting attorney is not otherwise required to disclose to the other side.
An experienced federal criminal defense attorney can press the government to disclose more of its evidence and information, request additional time as needed to prepare a defense, and obtain additional information through FOIA and other means.
Sentences for Federal Gun Convictions
In the federal system, the sentence depends on two factors: (1) the mandatory minimum and maximum sentences under the statute and (2) the advisory range under the U.S. Sentencing Guidelines. The mandatory minimum and maximum sentences are the ones set by statute in the United States Code, like under 18 U.S.C. 924(c). These are referred to as “statutory” penalties because they are set by law. The judge cannot go above or below the statutory penalties, except in limited circumstances specified by law (like for the defendant’s substantial assistance to the government or the “safety valve” laws for non-violent drug offenders). On the other hand, the U.S. Sentencing Guidelines are advisory rather than mandatory: the judge must calculate and consider them in order to help decide what the exact sentence should be within the allowable statutory penalty range. The judge can decide to go above or below the guidelines range with legitimate reasons. An experienced federal defense attorney can challenge the legitimacy of a judge’s decision to go above the guidelines range and can advocate that the judge goes below the guidelines.
The judge can vary downward below the guidelines range for any number of reasons — for example, if the defendant:
Has a non-violent history
Engaged in criminal activity over a short period of time
Has a strong personal history of employment or other positive community involvement
Has not previously served a lengthy prison sentence
Is a dedicated and responsible family member providing for others
Had a difficult upbringing or circumstances that explain a path toward criminal activity
Shows genuine remorse and a desire to reform
Does not need a lengthy prison term to be deterred from committing future crimes
A skilled federal defense attorney who understands the nuances of federal sentencing law can advocate for these reasons, among others, for a downward variance. Having a skilled federal defense attorney is a critical component of obtaining a downward variance.
Federal Drug Attorneys
Our lawyers spent years building cases for the federal government and know how to defend you and your best interests smartly and effectively. Our firm is devoted to criminal defense, both in state and federal court. Our attorneys know the federal system inside and out, take time to explain what can seem like a foreign process, and are able to lay out a strategy for a successful resolution of the case quickly and effectively — whether that includes negotiating a favorable plea agreement, challenging an illegal search and seizure, or taking the case to trial.
In order to try and win your case or get you the best result possible, SBBL Law will:
Gather and carefully review the evidence against you
Discuss the case in detail with you and keep you updated as the case evolves
Identify weaknesses in the prosecution’s case
Identify mistakes that were made in the investigative or charging process
Challenge any illegal searches and seizures or violations of your Miranda rights
Advise on and advocate for bond while awaiting trial
Estimate your sentencing guideline range if you were to be convicted of the offense
File motions to vary downward from the applicable guideline range, where appropriate
Explore the benefits of cooperation
Present evidence/arguments to mitigate any sentence
Be ready for trial
Appeal unlawful sentences or convictions
